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Re-trial for Lavulavus. Judge overstepped the line and took on prosecutor’s role says panel

‘Etuate and Akosita Lavulavu have been granted a retrial.

Minister of Infrastructure ‘Akosita Lavulavu and husband ‘Etuate Lavulavu. Photo/Akosita Lavulavu (Facebook)

In their report on the hearing in the Court of Appeal, Judges Hansen, de Jersey, Harrison and Heath said the original trial under Judge Cooper had gone “badly awry” and that he had acted outside the bounds of his role.

However, the panel of four judges who heard the appeal said sufficient evidence had been presented at the original trial to have gained a conviction on a correct application of relevant legal principles. A retrial was therefore necessary.

The former politicians were convicted by Judge Cooper of three joint charges of obtaining TP$553,800 by false pretences for the private education body, the the ‘Unuaki ‘O Tonga Royal Institute. They were both sentenced to six years’ in prison.

The last 12 months of Mrs Lavulavu’s sentence was suspended in for two years on condition that she comply with the directions of her probation officer, satisfactorily complete a life skills course and commit no offence punishable by imprisonment. 

Both Mrs Lavulavu and her husband appeal against conviction and sentence. Their appeal was based on claims that Judge Cooper erred in his analysis of the elements of the offence; that he erred in holding that the principles of agency could be invoked for the purpose of proving the offences, that he erred in finding there was evidence sufficient to establish guilt and that he was biased and/or that the conduct of the trial was unfair.

The four judges who heard the Lavulavus’ appeal found that  Judge Cooper had erred in the first count by not considering all elements of the defence.

They found in favour of the second claim, saying that Judge Cooper should not have relied on the principle of agency to determine the case.

“The rules of agency with their particular requirements relating to knowledge and authority have no place in a case such as this,” they said.

“”We see no reason why the evidence should not be analysed in the usual way by considering whether the elements of the offence have been established, if necessary by reference to the statutory provisions for establishing guilt as a party.”

However, they dismissed the argument that Judge Cooper had not found sufficient evidence of guilt. They said there was ample evidence to support the judge’s findings.

The Lavulavus claimed the trial was unfair. They accused Judge Cooper of “excessive judicial interventions and conduct which conveyed a predetermined and adverse view of their case.” During the trial they asked for the judge to step down, which he refused to do.

The four judges said the trial threatened to involve up to 100 witness and Judge Cooper had a right to try to manage it so that it flowed smoothly. This meant that he had to ask more questions and intervene more often than usual. They said the situation was not helped by the fact that Mr Lavulavu represented himself, which added greatly to the judge’s workload.

However, the judges found that Judge Cooper’s questions and interventions took him beyond the boundaries of his role as a judge and that at times he effectively became a second prosecutor. They said there was also evidence that the judge held strong views on certain issues. Quoting the UK Privy Council, they said: “”The need for the judge to steer clear of advocacy is more acute still in criminal cases. It is imperative that a party to litigation, above all a convicted defendant, will leave court feeling that he has had a fair trial, or at least that a reasonable observer having attended the proceedings would so regard it.”

 “Having regard to these principles and to the aspects of the trial earlier set out, we are left in no doubt that the appellants are fully justified in feeling that they did not have a fair trial and that a fair minded observer would agree with them.”

“The irregularities have referred to resulted in a trial that went badly awry. In what we assume to have been a well-intentioned attempt to expedite the trial, the Judge persistently and, in some cases, egregiously exceeded his proper function. It was understandable that the appellants should feel the Judge was not acting impartially and inevitable that a fair minded observer would share that view.

“There is accordingly ample evidence to support findings of apparent bias on the part of the Judge and that the trial was unfair. The verdicts cannot stand.

“We are satisfied, however, that there was sufficient evidence to support convictions on a correct application of relevant legal principles. A retrial must accordingly follow.”